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All appeals by the defendant and the prosecutor are dismissed.
Reasons
1. Determination on the prosecutor's assertion of mistake of facts
A. Comprehensively taking account of the evidence submitted by the prosecutor claiming that the non-guilty part of the judgment below (special larceny) was acquitted, the defendant could sufficiently be found to have stolen the victim D's property jointly with G.
Nevertheless, the judgment of the court below that this part of the facts charged constitutes a case where there is no proof of crime.
B. The summary of this part of the facts charged is as follows: G and the Defendant conspiredd with G to steal goods by intrusion into the house in which the fire was fluened at a night, and came into the vicinity of D’s house located under the Eunpyeong-gu Seoul building C No. 403 around December 26, 2015, and G waiting in and waiting in the H to the Defendant’s siren. The Defendant intruded into the house through the inner window where the gas pipe installed on the above Bara external wall was installed, and then intruded into the house through the inner window where the gas pipe was installed on the said Dora, one half of the market price of the D owned in the small bank, and one half of the market price of KRW 1,50,000,000,000 in the market price, and one half of the five hundred and fifty thousand,000,000 won in the city.
(c)
The lower court, on the following grounds, found that this part of the facts charged constituted a case where there is no proof of crime, and found the Defendant not guilty pursuant to the latter part of Article 325 of the Criminal Procedure Act, but inasmuch as the lower court found the Defendant guilty of larceny of intrusion at night, the lower court did not separately sentence the Defendant not guilty.
“1) The burden of proof for the facts charged in a criminal trial is to be borne by a public prosecutor, and the conviction of guilt is to be based on evidence of probative value, which makes a judge not having any reasonable doubt that the facts charged are true, so long as there is no such evidence, it is inevitable to determine the benefit of the defendant even if there is a suspicion of guilt.
(ii)..